Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell

• Citation: 794 F.3d 1151
• Decision Date: 14 July 2015
• Docket Number: 14–6028.,14–6026,Nos. 13–1540,s. 13–1540
• Parties: LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, a Colorado non-profit corporation; Little Sisters of the Poor, Baltimore, Inc., a Maryland non-profit corporation, by themselves and on behalf of all others similarly situated; Christian Brothers Services, a New Mexico non-profit corporation; Christian Brothers Employee Benefit Trust, Plaintiffs–Appellants, v. Sylvia Mathews BURWELL, Secretary of the United States Department of Health and Human Services; United States Department of Health & Human Services; Thomas E. Perez, Secretary of the United States Department of Labor; United States Department of Labor; Jacob J. Lew, Secretary of the United States Department of the Treasury; United States Department of the Treasury, Defendants–Appellees. Southern Nazarene University; Oklahoma Wesleyan University; Oklahoma Baptist University; Mid–America Christian University; Reaching Souls International, Inc., an Oklahoma not for profit corporation; Truett–McConnell College, Inc., a Georgia nonprofit corporation, by themselves and on behalf of all others similarly situated; GuideStone Financial Resources of the Southern Baptist Convention, a Texas nonprofit corporation, Plaintiffs–Appellees. v. Sylvia Mathews Burwell, Secretary of the United States Department of Health and Human Services; United States Department of Health & Human Services; Thomas E. Perez, Secretary of the United States Department of Labor; United States Department of Labor; Jacob J. Lew, Secretary of the United States Department of the Treasury; United States Department of the Treasury, Defendants–Appellants. 67 Catholic Theologians and Ethicists; Alabama Physicians for Life; American Association of Pro–Life Obstetricians & Gynecologists; American Association of University Women; American Bible Society; American Center for Law and Justice; American Civil Liberties Union of Colorado ; American Civil Liberties Union of Oklahoma ; American Civil Liberties Union; American Federation of State, County and Municipal Employees (AFSCME); American Public Health Association; Americans United for Separation of Church and State; Asian & Pacific Islander American Health Forum; Asian Americans Advancing Justice AAJC; Asian Americans Advancing Justice Los Angeles ; Association of American Physicians & Surgeons; Association of Christian Schools International; Association of Gospel Rescue Missions; Black Women's Health Imperative; California Women's Law Center, National Women's Law Center; California Women's Law Center ; Catholic Medical Association; Christian Legal Society; Christian Medical Association; Christie's Place; Concerned Women for America; Dr. R. Albert Mohler, Jr.; Ethics & Religious Liberty Commission of the Southern Baptist Convention; Feminist Majority Foundation; Forward Together; HIV Law Project ; Ibis Reproductive Health; Institutional Religious Freedom Alliance and Christian Legal Society; International Mission Board of the Southern Baptist Convention ; IPAS; Legal Momentum; Liberty Counsel; Liberty University; Liberty, Life, and Law Foundation; Lutheran Church–Missouri Synod; Merger Watch ; Naral Pro–Choice America; Naral Pro–Choice Colorado ; Naral Pro–Choice Wyoming; National Asian Pacific American Women's Forum; National Association of Catholic Nurses; National Association of Evangelicals; National Association of Pro Life Nurses; National Catholic Bioethics Center; National Family Planning & Reproductive Health Association ; National Health Law Program; National Latina Institute for Reproductive Health ; National Organization for Women (Now) Foundation; National Partnership for Women and Families; National Women and Aids Collective; National Women's Health Network; National Women's Law Center; Planned Parenthood Association of Utah; Planned Parenthood of Kansas and Mid–Missouri; Planned Parenthood of the Heartland; Planned Parenthood of the Rocky Mountains, Inc.; Population Connection; Prison Fellowship Ministries; Raising Women's Voices for the Health Care We Need; Service Employees International Union (SEIU) ; Sexuality Information and Education Council of the U.S. (SIECUS); Southern Baptist Theological Seminary ; United States Conference of Catholic Bishops, Amici Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

794 F.3d 1151

LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, a Colorado non-profit corporation;

Little Sisters of the Poor, Baltimore, Inc., a Maryland non-profit corporation, by themselves and on behalf of all others similarly situated;

Christian Brothers Services, a New Mexico non-profit corporation;

Christian Brothers Employee Benefit Trust, Plaintiffs–Appellants
v.
Sylvia Mathews BURWELL, Secretary of the United States Department of Health and Human Services;

United States Department of Health & Human Services;

Thomas E. Perez, Secretary of the United States Department of Labor;

United States Department of Labor;

Jacob J. Lew, Secretary of the United States Department of the Treasury;

United States Department of the Treasury, Defendants–Appellees.

Southern Nazarene University;

Oklahoma Wesleyan University;

Oklahoma Baptist University;

Mid–America Christian University;

Reaching Souls International, Inc., an Oklahoma not for profit corporation;

Truett–McConnell College, Inc., a Georgia nonprofit corporation, by themselves and on behalf of all others similarly situated;

GuideStone Financial Resources of the Southern Baptist Convention, a Texas nonprofit corporation, Plaintiffs–Appellees.
v.
Sylvia Mathews Burwell, Secretary of the United States Department of Health and Human Services;

United States Department of Health & Human Services;

Thomas E. Perez, Secretary of the United States Department of Labor;

United States Department of Labor;

Jacob J. Lew, Secretary of the United States Department of the Treasury;

United States Department of the Treasury, Defendants–Appellants.

67 Catholic Theologians and Ethicists;

Alabama Physicians for Life;

American Association of Pro–Life Obstetricians & Gynecologists;

American Association of University Women;

American Bible Society;

American Center for Law and Justice;

American Civil Liberties Union of Colorado ;

American Civil Liberties Union of Oklahoma ;

American Civil Liberties Union;

American Federation of State, County and Municipal Employees (AFSCME);

American Public Health Association;

Americans United for Separation of Church and State;

Asian & Pacific Islander American Health Forum;

Asian Americans Advancing Justice AAJC;

Asian Americans Advancing Justice Los Angeles ;

Association of American Physicians & Surgeons;

Association of Christian Schools International;

Association of Gospel Rescue Missions;

Black Women's Health Imperative;

California Women's Law Center, National Women's Law Center;

California Women's Law Center ;

Catholic Medical Association;

Christian Legal Society;

Christian Medical Association;

Christie's Place;

Concerned Women for America;

Dr. R. Albert Mohler, Jr.;

Ethics & Religious Liberty Commission of the Southern Baptist Convention;

Feminist Majority Foundation;

Forward Together;

HIV Law Project ;

Ibis Reproductive Health;

Institutional Religious Freedom Alliance and Christian Legal Society;

International Mission Board of the Southern Baptist Convention ;

IPAS;

Legal Momentum;

Liberty Counsel;

Liberty University;

Liberty, Life, and Law Foundation;

Lutheran Church–Missouri Synod;

Merger Watch ;

Naral Pro–Choice America;

Naral Pro–Choice Colorado ;

Naral Pro–Choice Wyoming;

National Asian Pacific American Women's Forum;

National Association of Catholic Nurses;

National Association of Evangelicals;

National Association of Pro Life Nurses;

National Catholic Bioethics Center;

National Family Planning & Reproductive Health Association ;

National Health Law Program;

National Latina Institute for Reproductive Health ;

National Organization for Women (Now) Foundation;

National Partnership for Women and Families;

National Women and Aids Collective;

National Women's Health Network;

National Women's Law Center;

Planned Parenthood Association of Utah;

Planned Parenthood of Kansas and Mid–Missouri;

Planned Parenthood of the Heartland;

Planned Parenthood of the Rocky Mountains, Inc.;

Population Connection;

Prison Fellowship Ministries;

Raising Women's Voices for the Health Care We Need;

Service Employees International Union (SEIU) ;

Sexuality Information and Education Council of the U.S. (SIECUS);

Southern Baptist Theological Seminary ;

United States Conference of Catholic Bishops, Amici Curiae.

Nos. 13–1540
14–6026
14–6028.

United States Court of Appeals, Tenth Circuit.

July 14, 2015.

794 F.3d 1155

Mark L. Rienzi, Becket Fund for Religious Liberty, Washington, DC (Daniel Blomberg and Adele Auxier Keim, Becket Fund for Religious Liberty, Washington, DC; Carl C. Scherz and Seth Roberts, Locke Lord LLP, Dallas, Texas; and Kevin C. Walsh, University of Richmond Law School, Richmond, Virginia, with him on the briefs), appearing for Little Sisters of the Poor Home for the Aged, Little Sisters of the Poor, Baltimore, Inc., Christian Brothers Services, Christian Brothers Employee Benefit Trust, Reaching Souls International, Inc., Truett–McConnell College, Inc., and GuideStone Financial Resources of the Southern Baptist Convention.

Adam C. Jed, Attorney, Appellate Staff, Civil Division (Stuart F. Delery, Assistant Attorney General; Sanford C. Coats and John F. Walsh, United States Attorneys; Beth S. Brinkmann, Deputy Assistant Attorney General; Mark B. Stern, Alisa B. Klein, Patrick G. Nemeroff, and Megan Barbero, Attorneys, Appellate Staff Civil Division, with him on the briefs), United States Department of Justice, Washington, DC, appearing for Sylvia Mathews Burwell, United States Department of Health and Human Services, Thomas E. Perez, Jacob J. Lew, and United States Department of the Treasury.

Gregory S. Baylor, Alliance Defending Freedom, Washington, DC (Matthew W. Bowman, Alliance Defending Freedom, Washington, DC, David A. Cortman, Alliance Defending Freedom, Lawrenceville, Georgia, and Kevin H. Theriot, Alliance Defending Freedom, Leawood, Kansas, with him on the briefs), appearing for Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist University, and Mid–America Christian University.

Before MATHESON, McKAY, and BALDOCK, Circuit Judges.

Opinion

MATHESON, Circuit Judge.

TABLE OF CONTENTS

Glossary 1156

I.	Introduction	1159
II.	Hobby Lobby and this case	1160
III.	Background	1160

A. Regulatory Background 1160

1.	The ACA Mandate and the Religious Employer Exemption	1160
2.	The Accommodation Scheme for Religious Non–Profit Organizations	1162

a.	EBSA Form 700	1163
b.	Alternative notice	1163

3. The Mechanics of the Accommodation for Insured Plans, Self–Insured Plans, and Self–Insured Church Plans 1165

a.	Insured plans	1165
b.	Self-insured plans	1166

...